Guardianship and Administration

What is Guardianship and Administration?

The Guardianship and Administration Act 1990 recognises that people who are not capable of making reasoned decisions for themselves may need additional support and assistance not only to ensure their quality of life is maintained, but also to protect them from the risk of neglect, exploitation and abuse.

A decision-making disability may affect a person's ability to manage various aspects of their lives. This support is often given by people who are already involved in their lives, such as family, friends and service providers.

The Act provides that SAT may appoint a guardian for a person with a decision-making disability. This allows a guardian to be appointed as a substitute decision-maker.

Because appointment of a guardian involves taking away a person's fundamental decision-making rights, it is a course of action which is taken by SAT as a last resort - only after less restrictive measures of assuring the person's wellbeing and safety have been considered and found to be unsuitable.

SAT also considers applications for intervention into Enduring Powers of Attorney (EPA) and other applications in respect of EPAs. These are different to Guardianship and Administration orders, and more information on EPAs can be found on the Office of the Public Advocate's website.

An Enduring Power of Attorney enables a competent adult to give another person or agency legal authority to make financial and/or property decisions on their behalf, in the event they are unable to make decisions for themselves.

What is a guardian?

A guardian is appointed by SAT to make personal medical and or lifestyle decisions in the best interests of someone who is not capable of making those decisions for themselves.

These decisions often relate to work, living arrangements or medical treatment. The decision-making authority of a guardianship order may be limited to specific areas such as medical and accommodation (limited order) or apply to all areas of the person's life (plenary order).

There are some decisions a guardian cannot make. These include:

voting on behalf of the person they represent

making a will on behalf of the person they represent

giving consent to the marriage of the person they represent or their minor child

giving consent to the adoption of a child of the person they represent.

Who can be appointed a personâ€™s guardian?

A person nominated as guardian must:

be at least 18 years of age

consent to act as guardian to the person about whom the application is being made

be prepared to act in the person's best interests at all times and encourage the person's independence,

personal decision-making and participation in community life

not be in a position where their own interests conflict with the best interests of the represented person.

In situations where there is no-one willing, suitable or available to take on the role of guardian, the Public Advocate may be appointed by SAT as Guardian of Last Resort.

What is an administrator?

An administrator is appointed by SAT to make financial and legal decisions in the best interests someone not capable of making those decisions for themselves. An administrator may be given authority to decide specific matters such as the sale of assets, payment of debts or investment of money. Not only do they manage these financial issues but they also pay all the daily bills, purchase clothes and they must keep detailed accounts.

Do I have to pay to apply for a Guardianship or Administration application?

There are no application fees charged for guardianship and administration applications. This applies to all applications under the Guardianship and Administration Act 1990, such as Enduring Power of Attorney, Advanced Health Directives and Enduring Powers of Guardianship.

Guardianship and Administration Information Guide

You can find guidance and information that may assist you in resolving questions or issues in relation to Guardianship and Administration issues on the eCourts Portal of Western Australia at eCourts Portal of WA. This process may also offer some assistance if you need to still bring an application for Guardianship or Administration to SAT. When you go to the eCourts webpage please select the heading "Guardianship and Administration" to begin.

Urgent applications

If an application for guardianship or administration is urgent, the normal application must be completed. In the application it asks if the nature of the application is urgent, you should indicate that it is and then provide the reasons for the urgency. All applications are listed for a hearing as quickly as possible, however in some instances, for example:

Urgent guardianship application: A person may be in need of urgent surgery and their family are in conflict about giving approval. An application to SAT of this nature would take into account the nature of the surgery and risks. This would be an urgent application.

Urgent administration application: A person may no longer be able to make decisions in their own best interest and some one has convinced them to sell their property for below market value. The land transaction is being processed within a fortnight. In this instance SAT will determine the urgency and may issue and order preventing the property transaction proceeding until after a full hearing.

SAT does not take on the duties of a guardian or administrator, but appoints appropriate persons to undertake those duties and make decisions in the best interest of represented persons.

Personal service

What is it? Section 115 of the Guardianship and Administration Act 1990 outlines when a notice is required to be given to the subject of an application:

that notice shall be given personally to the person whom an application has been made about;

the contents of any notice shall be explained to the person at the time the notice is given;

the explanation shall be provided, as far as is practicable, in the language, mode of communication and in the terms which they are most likely to understand; and

the explanation shall be provided, as far as is practicable, both orally and in writing.

What does that mean? Simply, this means a person needs to be responsible for handing the notice to the person and to verbally explain to that person what the notice is about. If you happen to be the person who submitted the application then you may be the appropriate person to do this.

On some occasions you'll encounter serving a person who might not comprehend what you’re explaining to them. If so, just do your best to communicate in simple terms. Avoid using jargon and technical terms (unless directed to) as this can be confusing for some people.

In the event the person is in hospital and unconscious for a prolonged period of time it’s only practical for the notice to be placed on the patients file. This can be arranged with nursing staff if person’s condition is unlikely to improve in the near future.

What's the process? If you've been asked or offered to effect personal service it’s a simple process, just follow the directions below.

The Tribunal will send you the Notice of Hearing for the person who needs to be served and also a service receipt.

Meet with the person, verbally explain the notice and hand them the document. Use the following script:

"This is a notice of hearing for an application under the Guardianship and Administration Act 1990. An application for (nature of application in words as indicated on the Notice of Hearing) was submitted by (the applicant's name and relationship will be on notice of hearing) asking for an administrator and/or guardian to assist you in taking care of your finances and/or making arrangements for lifestyle decisions such as where you should live or what medical treatment you might need.

If it’s a statutory review under section 84 of the Act the Tribunal will be the applicant. In this case please explain that the Tribunal needs to review their current administration and/or guardianship arrangements.

A hearing has been listed on [date and time of hearing as indicated on the Notice of Hearing] to discuss the application and/or current arrangements".

Complete the service receipt provided by the Tribunal and return it as proof of service as soon as possible. It’s important to note that due to legislative requirements, the person needs to be served at least 14 days prior to the date of the hearing in order for the hearing to proceed. The service receipt must also be returned to the Tribunal no later than 14 days prior to the hearing date. Failure to so may result in the hearing being vacated and relisted to ensure a minimum of 14 days’ notice was given.

For further information, please contact the Tribunal on (08) 9219 3111 or 1300 306 017 and ask to speak with the assigned case manager.

Who is the Public Advocate?

The Public Advocate is an independent statutory officer under the Guardianship and Administration Act 1990. The Public Advocate may be appointed guardian and has other functions under the Act including to promoting and protecting the rights and autonomy of people with decision-making disabilities and reducing their risk of neglect, exploitation and abuse.

The Public Advocate provides a range of vital services to ensure that vulnerable Western Australians with a decision-making disability are protected. These services include:

information, advice and training on how to protect the rights of people with decision-making disabilities

investigation of concerns about the wellbeing of a person with a disability and whether an administrator or guardian is required

investigation of specified applications made to SAT to determine whether a guardian or administrator is required

guardianship services (for medical and other personal decisions) when SAT determines that there is no one else available, suitable or willing to act as the person's guardian.

What is the role of the Public Trustee?

by examining the accounts prepared by a person who has been appointed as administrator.

SAT can appoint the Public Trustee as administrator of a represented person's financial affairs if there is no one else suitable and willing to take on the role. The Public Trustee may also be appointed jointly or with limited authority.

The Public Trustee is responsible for the examination of annual accounts prepared by other persons who have been appointed as administrator. If the accounts are in order, the Public Trustee will allow them and inform the administrator in writing. If the accounts are disallowed, the Public Trustee will generally report the circumstances to SAT.

Further Information

SAT staff are happy to answer your questions. Contact us if you need further information.

There are a number of pamphlets available, including a guide for Professional Applicants. Professional applicants include doctors, nurses, social workers and other health professionals in hospitals, nursing homes and the community, carers, lawyers, mental health workers, and staff of government agencies.